Under Business and Professions Code 25662 BP, it is illegal in California for minors to be in possession of alcohol in a public place. Specifically, minors under the age of 21 may not have alcohol in their possession on any street or highway or at any place open to the public.
25662 BP states that “any person under 21 years of age who has any alcoholic beverage in his or her possession on any street or highway or in any public place or in any place open to the public is guilty of a misdemeanor and shall be punished by a fine of two hundred fifty dollars ($250) or the person shall be required to perform not less than 24 hours or more than 32 hours of community service during hours when the person is not employed or is not attending school.”
- a 17-year-old and sneaking beer into an amusement park
- a 20-year-old bringing hard alcohol to the beach with friends
- two 18-year-olds going for walk on a neighborhood sidewalk with mixed drinks
Luckily, there are several legal defenses that a person can raise if accused under this section. These include showing that the minor was:
- following instructions of a parent;
- not in a public place; and/or,
- exempt from prosecution.
A first-time violation is an infraction punishable by a fine of $250 or community service.
Our California criminal defense attorneys will highlight the following in this article:
- 1. What are the rules as to minors with alcohol in public?
- 2. Are there defenses to a 25662 BP charge?
- 3. What are the penalties?
- 4. Are there related offenses?
1. What are the rules as to minors with alcohol in public?
A prosecutor must prove three facts to successfully show that a minor is violating 25662 BPC. These are:
- The defendant was under the age of 21 (at the time of the incident);
- The defendant possessed an alcoholic beverage; and,
- The defendant was on a street, highway, public place, or a place open to the public.1
Note that while “public place” and a “place open to the public” seem like the same thing, there is a slight difference between the two.
A “public place” is a place that is always open to the public. Examples are:
- a beach, or
- a sidewalk.
A “place open to the public” refers to private property that the public may use for some purpose. Examples include:
- an amusement park, or
- a shopping center.
2. Are there defenses to a 25662 BP charge?
A person accused under Business and Professions Code 25662 can challenge the accusation by raising a legal defense. A good defense can often get a charge reduced or even dismissed. Please note, however, that it is critical for an accused to hire an attorney to get the most effective defense.
Three common defenses are that the minor was:
- following instructions of a parent;
- in a private place; and/or,
- immune from prosecution.
2.1. Following instructions of a parent
Under BP 25662(a), a minor has a complete defense to a violation of the code section if he possessed alcohol while following the reasonable instructions of his or her:
- legal guardian,
- responsible adult relative, or
- adult designee.2
2.2. In a private place
Recall that this section only applies to a minor’s possession of alcohol while he is in a public place. This means a minor has a defense if he possessed alcohol while in a private location – such as his home.
2.3. Immune from prosecution
Business and Professions Code 25667 sets forth a specific immunity from prosecution for a minor that makes an emergency report of alcohol use.
This code section states that a person under the age of 21 is immune from criminal prosecution if he:
- called 911 and reported that he (or another person) needed medical help due to alcohol consumption;
- was the first person to make the emergency report; and,
- remained on the scene until medical assistance arrived.3
3. What are the penalties?
A first-time violation of BPC 25662 is treated as an infraction.4 The offense is punishable by:
- a fine of $250, or
- 24-32 hours of community service.5
A second or subsequent violation is charged as a misdemeanor. The offense is punishable by:
- a maximum fine of $500, and/or
- 36-48 hours of community service.
4. Are there related offenses?
There are three crimes related to a minor possessing alcohol while in a public place. These are:
- underage DUI – VC 23140;
- selling or furnishing alcohol to a minor – BPC 25658; and,
- cell phone tickets for minor drivers – VC 23124.
4.1. Underage DUI – VC 23140
Vehicle Code 23140 VC makes it a crime for anyone under 21 to drive with a BAC of .05% or higher.
A defendant violates VC 23140 if:
- he is under the age of 21 and drives a vehicle;
- at the time of driving, the defendant is under the influence of or affected by consumption of an alcoholic beverage; and,
- the defendant’s blood alcohol content (“BAC”) when he drives is 0.05% or greater.6
A violation of VC 23140 is an infraction. The offense is punishable by:
- a one-year suspension of the minor’s driver’s license (for a first offense),7
- a fine of $100 (for a first offense),8 and
- a mandatory alcohol education program of three months or longer (if the offender is over 18 years of age).9
4.2. Selling or furnishing alcohol to a minor – BPC 25658
Business and Professions Code 25658 makes it a misdemeanor in California to sell or furnish alcohol to a minor.
Under BPC 25658, it is a crime to:
- furnish (that is, sell, provide or give), or causing to be sold, furnished, or given away, any alcoholic beverage to a person under the age of 21; or,
- being a person under 21 and either
a) purchasing an alcoholic beverage, or
b) consuming an alcoholic beverage in a place where alcohol is sold; or,
- being an on-sale licensee and permitting a person who is under 21 to consume an alcoholic beverage on the premises, even if the licensee doesn’t have actual knowledge that the individual is under 21 years of age.10
A violation of BPC 25658 is charged as a misdemeanor. The penalties for furnishing alcohol to a minor vary depending on the exact circumstances of a case. Penalties, though, may include substantial fines and imprisonment in the county jail.
4.3. Cell phone tickets for minor drivers – VC 23124
Pursuant to California Vehicle Code 23124 VC minors in California cannot drive a vehicle while using a wireless telephone or an electronic device.
VC 23124 (b) states:
[persons under the age of 18] shall not drive a motor vehicle while using a wireless telephone or an electronic wireless communications device, even if equipped with a hands-free device.11
“Electronic wireless communications device” includes, but is not limited to, a broadband personal communication device, specialized mobile radio device, handheld device or laptop computer with mobile data access, pager, and two-way messaging device.12
The penalty for violating VC 23124 is a base fine of $20.00 for a first offense and $50.00 for each offense thereafter.13
Please note that the above dollar amounts are the base fines. The actual amount of a ticket will be significantly greater because of fees and assessments.
For additional help…
If you or someone you know has been accused of a crime, per Business and Professions Code 25662, we invite you to contact us for a free consultation.
For similar accusations or charges in Nevada, please see our article on Minor Possession of Alcohol in Nevada Law (NRS 202.020). For similar accusations or charges in Colorado, please see our article on Colorado “Minor in Possession” of Alcohol or Marijuana.
- California Business and Professions Code 25662(a) BP. This code section states that “except as provided in Section 25667 or 25668, any person under 21 years of age who has any alcoholic beverage in his or her possession on any street or highway or in any public place or in any place open to the public is guilty of a misdemeanor and shall be punished by a fine of two hundred fifty dollars ($250) or the person shall be required to perform not less than 24 hours or more than 32 hours of community service during hours when the person is not employed or is not attending school. A second or subsequent violation shall be punishable as a misdemeanor and the person shall be fined not more than five hundred dollars ($500) or required to perform not less than 36 hours or more than 48 hours of community service during hours when the person is not employed or is not attending school, or a combination of fine and community service as the court deems just. It is the intent of the Legislature that the community service requirements prescribed in this section require service at an alcohol or drug treatment program or facility or at a county coroner’s office, if available, in the area where the violation occurred or where the person resides. This section does not apply to possession by a person under 21 years of age making a delivery of an alcoholic beverage in pursuance of the order of his or her parent, responsible adult relative, or any other adult designated by the parent or legal guardian, or in pursuance of his or her employment. That person shall have a complete defense if he or she was following, in a timely manner, the reasonable instructions of his or her parent, legal guardian, responsible adult relative, or adult designee relating to disposition of the alcoholic beverage.
- See same.
- California Business and Professions Code 25667.
- California Penal Code 19.8.
- California Business and Professions Code 25662(a).
- Vehicle Code 23140.
- Vehicle Code 13352.6.
- Vehicle Code 42001.25.
- Vehicle Code 23502.
- California Business and Professions Code 25658.
- California Vehicle Code 23124 (b).
- California Vehicle Code 23124 (g).
- California Vehicle Code 23124 (c).